Holm v. Meisner

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING
CASE

C.N.
CLEVERT, JR. U.S. DISTRICT JUDGE

Victor
Holm filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging his judgment of conviction
in Forest County Circuit Court Case No. 2001CF122 on one
count of first-degree intentional homicide as a party to a
crime.[1] Holm was charged with the shooting death
of Lance Leonard, who was buried in a shallow grave in the
woods near Crandon, Wisconsin. On the third day of his jury
trial, Holm pled guilty to first-degree intentional homicide
in return for the state's sentence recommendation of life
in prison, and agreement not to take a position respecting
his eligibility for release. On September 24, 2002, Judge
Robert A. Kennedy sentenced Holm to life in prison without
the possibility of release. After Holm filed a postconviction
motion and the circuit court conducted a Machner
hearing, the Wisconsin Court of Appeals affirmed Holm's
direct appeal and the Wisconsin Supreme Court denied his
petition for a writ of certiorari. Holm filed his federal
habeas petition in this district, then returned to the state
courts to pursue a Wis.Stat. § 974.06 motion on various
ineffective assistance of counsel claims that were not raised
in his original postconviction motion. The circuit court
denied the § 974.06 motion without an evidentiary
hearing. Thereafter, the Wisconsin Court of Appeals found the
claims procedurally barred and lacking merit. Nevertheless,
the Wisconsin Court of Appeals remanded for the limited
purpose of correcting the judgment of conviction to reflect a
sentence of life in prison without eligibility for extended
supervision.[2] For the reasons set forth below, the
petition will be denied.

Because
of the number of appeals and documents filed by Holm and the
“scattershot” approach he has taken to
litigation, a discussion of the procedural history is
critical to the resolution of this petition. See
generally State v. Holm, 2012 WI.App. 106, ¶ 17. At
each step of litigation, Holm has disregarded the procedural
rules and standards of review. As a result, at times it is
difficult to determine what Holm is arguing and what evidence
he is relying upon. In any event, the court has reviewed all
documents on file, mindful of the standards governing habeas
review.

Holm
was charged on December 10, 2001, with first-degree
intentional homicide, as party to a crime, in connection with
Leonard's death. At that time, Attorney Robert Rusch was
appointed to represented him. On March 28, 2002, Attorney
Rusch filed pretrial motions to suppress statements, change
venire, compel disclosure of confidential informant, and
suppress evidence obtained pursuant to a defective search
warrant. Judge Robert A. Kennedy denied the motions. Trial
commenced on June 25, 2002. On the second day of trial, Holm
indicated to his investigator and later Attorney Rusch that
he was interested in exploring the possibility of a plea. By
the third day, Holm indicated that he was prepared to put the
plea on the record, and, that in exchange for the plea, the
prosecutor agreed to take no position regarding Holm's
eligibility for extended supervision. The court kept the
jury, but instructed Holm and his attorney to go over the
plea questionnaire form in the law library.

After
discussing the plea questionnaire form, the parties went back
on the record with Attorney Rusch representing that he had
reviewed the questionnaire with Holm and that Holm had signed
the document. Holm confirmed his signature and stated that he
had reviewed the document with his attorney “line by
line.” He told the court that he understood that the
trial would stop, that he would not be able to present
mitigating circumstances or subpoena and/or cross-examine
witnesses, that the judge was not bound by the plea agreement
or recommendations, and that he faced mandatory life
imprisonment without the possibility of parole. The record
reveals that the District Attorney, Leon Stenz, told the
court that he agreed to “remain silent and take no
position with respect to extended supervision release.”

During
the colloquy, the court read the information to Holm as
follows:

Court: The above named defendant on or about Tuesday,
November 20, 2001, in the Town of Hiles, Forest County,
Wisconsin, as party to a crime, did cause the death of Lance
L. Leonard with intent to kill that person contrary to
Section 940.01(1)(A). And this is a Class A felony. Mandatory
penalty is life imprisonment. How do you plea to that?

Holm: Guilty.

The
court further explained the consequences of being charged as
a party to the crime and the possible sentences:

Court: Now, I notice that you were careful to - with respect
to the crime that was committed, careful to delineate that
you helped others commit it. And that as a party to the
crime. Well, notice the charging document alleges that you
were a party to the crime. Sometimes that causes confusion.
But under Wisconsin law a party to a crime is guilty of the
crime and consequences and penalties, the maximums anyway,
are the same as to whether you actually committed it or
whether you were a party to committing it. You understand
that?

Holm: Yes, I do, your Honor.

Court: Now, when we get into the sentencing phase, the court,
meaning the judge, has some options. One of them is mandatory
life imprisonment without the possibility of parole. Others
are life imprisonment but with the possibility of parole at
different periods of years and so that would have to come
from the bench. Decisions would be made before sentencing or
during sentencing rather, as to what would be done. So
it's not clear at this point what your actual chance of
getting out of prison would be. You understand that?

Holm: Yes, I do.

Court: If you had questions, did you ask Mr. Rusch?

Holm: I asked my attorney, yes.

Court: And received answers?

Holm: Yes.

Stenz: Judge, I just want to make one comment. We've been
referring parole. As the court is aware, it's now called
extended supervision. But I think the intent was the same.

Rusch: Your Honor, I would concur in that comment.

Court: Well, extended supervision isn't, I don't
think, issued at the time of sentence, is it? Okay. All
right. The language - here's the language that the
statute has. This is for sentencing an offense such as this
that calls for life imprisonment. Here's the options.

One, that you be eligible for release to extended supervision
after serving 20 years.

Two, that you would be eligible for release to extended
supervision on a date set by the court. And that would have
to be of more than 20 years.

Three, that you would not be eligible for release to extended
supervision at all.

So that's what the judge will have to decide at the time
sentence is pronounced. Do you have any questions up to this
point?

Holm: No.

Holm
acknowledged that he was pleading guilty to party to the
crime of murdering someone and that the murder was
intentional. His attorney represented to the court that he
believed that Holm was “knowingly and intelligently
waiving his constitutional rights and his trial
rights.” The court found a sufficient factual basis to
support the charge. Holm had no disagreement with his
attorney's statements and said that he was satisfied with
the legal representation he had received up that point. Holm
confirmed that nothing affected his thinking process and that
he received no threats or promises to get him to plead
guilty. In exchange for the state taking no position on
sentencing, Holm was required to testify truthfully against
any co-defendant or co-conspirators in Leonard's murder.
Holm advised the court that he understood the plea bargain,
and the court found that the plea was freely and voluntarily
made.

The
court dismissed the jury and accepted the plea, then went
back on the record and confirmed with Holm that his attorney
had explained the concept of party to the crime. Holm
confirmed that he had, and the court proceeded to read the
jury instructions to Holm regarding party to the crime,
aiding and abetting, and conspiracy.

During
the sentencing hearing on September 24, 2002, District
Attorney Stenz recounted the agreement-that the defendant
would testify truthfully and the district attorney would
remain silent and take no position respecting “extended
supervision.” In light of the agreement, District
Attorney Stenz refused to make a statement so as to not say
something that could be interpreted as taking a different
position. Meanwhile, Attorney Rusch argued that Holm should
be afforded the possibility of parole. Prior to sentencing
Holm to life in prison without eligibility for “release
to extended supervision, ” Judge Kennedy commented as
follows:

Court: I think the authorities believe that you pulled the
trigger. And from what I can see, I think you did too. But
that's irrelevant as to the sentencing because you're
implicated in this up to your eyeballs. Clearly you did
conspire with Drews and Socha and Elizabeth Mrazik to kill
Lance.

After
hearing from the victim's family, the court sentenced
Holm to life in prison because it was “necessary to
protect the public from further criminal activity.”
Following the entry of judgment, Holm's postconviction
counsel, Attorney James R.

Lucius,
filed a notice of intent to pursue postconviction relief and
subsequently moved to withdraw Holm's plea on the ground
that: (1) trial counsel misinformed Holm regarding the
availability of the coercion defense; (2) failed to explain
party to a crime properly- suggesting that if he admitted to
being a party to the crime the court would not be able to
rely on evidence that he pulled the trigger and sentence him
as if he were the actual triggerman; and (3) failed to object
to the State's alleged breach of the plea agreement. Holm
stated in his affidavit that the decision to enter the guilty
plea was the direct result of being informed by defense
counsel on the second day of trial that he would not be
allowed to introduce evidence that supported his claim to
have been an unwilling and coerced participant in the
incident and that he would not be sentenced as the
“actual triggerman.” According to Holm, he would
not have entered into a plea had he received the correct
information from counsel.

The
circuit court conducted a Machner[3] hearing on
January 6, 2004. Attorney Lucius argued that Holm felt
compelled to enter the guilty plea because of counsel's
ineffectiveness. To that end, Holm waived his attorney/client
privilege with respect to Attorney Rusch, who was called to
testify.

During
the hearing, Attorney Rusch testified that he was prepared to
present the defense of coercion-their “primary
articulated defense” but that the district attorney may
have objected to its admissibility because Thomas Socha was
charged as a co-conspirator. However, when asked if he ever
told Holm that they could not raise the coercion defense,
Attorney Rusch replied “absolutely not.” As
Attorney Rusch explained:

Rusch: Mr. Holm has a very strong mind set. He has his own
agenda.

Whether or not he understood is a difficult question. I can
say that he is an intelligent individual, but I think he
brings to these set of facts his own strong opinions on how
things ought to be, and it is difficult for him to
subordinate his deeply perceived viewpoint on how things
ought to be with my instructions as to the law.

Stenz: Did you agree with the defendant's decision to
enter a plea?

Rusch: Well, I don't know if I agree or disagree. I
recognize that it is entirely his decision, and it is not my
role to argue him out of it or into it. It's my role to
see to it that he fully understood his decision.

Stenz: Did you, in fact, recommend that he not ...

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